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Negligence - Breach of Duty (Step 1: (children who are defendants (below…
Negligence - Breach of Duty
Basic Info
once a duty has been established, the courts will look at whether this legal duty has been breached (broken)
2 stages to work out if there has been a breach
1) what is the standard of care required of the defendant?
a question of law (legal test required)
2) has the defendant's conduct fallen below that standard?
a question of fact
Step 1:
:red_flag: Blyth v Birmingham Waterworks: reasonable man test
an objective standard
test measures D's conduct according to what a reasonable person would have done (or failed to do) in the circumstances
D will have breached D's duty if D did, or failed to do, something a reasonable competent person would have done in the same circumstances
inexperienced defendants
the fact D is a learner or inexperienced would not normally be taken into account
all learners are judged by the same standard as competent, more experienced people
the reasonable man test is applied to inexperienced people
:red_flag: Nettleship v Weston
the standard of care of a learner-driver is that of the reasonably competent driver
children who are defendants
below 18
children and young people are not expected to reach the same standard as adults
standard = that of a reasonable competent person of the same age as the D at the time of the accident
standard lowers depending on the child's age
:red_flag: Mullin v Richards
professionals who are defendants
professionals cannot be judged against the reasonable person test because the ordinary person doe snot share their skills
instead judged against other people exercising the same skill
:red_flag: Bolam v Friern Barnet Hospital MC
standard of a professional is judged by the standard of the profession
does D's conduct fall below the standard of the ordinary competent member of that profession?
is there a substantial body of professional opinion to support D's conduct?
if answer to 1 is yes and 2 is no, D is in breach
not everyon in the particular profession has to agree with the conduct, only a considerable number
Step 2:
D must have failed to meet the standard of care
breach of duty of care by D involved D's failure to reach the standard, taking into account various risk factors that D should have considered
Risk factors
size of the risk
the greater the risk, the higher standard of care required
:red_flag: Bolton v Stone
the reasonable person does not take care against slight risks, but does against big risks
special characteristics of the claimant, known to the defendant
potential harm that might occur is increased, standard is higher
:red_flag: Paris v Stepney BC
D should have taken into account the potential harm to C due to their characteristics
adequate precautions
reasonable person is only expected to do what is reasonable to prevent harm
take cost and practicality into account
makes reasonable but not excessive precautions
:red_flag: Latimer v AEC Ltd.
public benefit
sometimes acceptable to run a risk if it's justified in the circumstances
if there is a public benefit in taking the risk, a lower standard of care applies
D is expected to balance the usefulness to society against the level of the risk
relevant in emergency situations
:red_flag: Watt v Herts CC
where the risk is UNKNOWN
if the risk is not known at the time, there is no breach of duty
:red_flag: Roe v Ministry of Health
where a reasonable person could not have known that a standard procedure was dangerous (e.g.)